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Arvind Datar on Judicial Appointments

Arvind Datar on Judicial Appointments

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Published by barandbench
Arvind Datar on Judicial Appointments
Arvind Datar on Judicial Appointments

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Categories:Business/Law
Published by: barandbench on Apr 09, 2013
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04/09/2013

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JUDICIAL APPOINTMENTS - THE INDIAN PERSPECTIVE
by
Arvind P.Datar,
Senior Advocate,Madras High Court,India.**Articles 124 and 217 of the Constitution of India deal with the appointment of Supreme Court and High Court Judges respectively. Although the provisions aretheoretically simple and clear, their practical implementation has been highlycontroversial. There has been an unfortunate power struggle on the question of supremacy or primacy in the matter of appointment of such Judges. The members of the Constituent Assembly who drafted the Constitution of India would have scarcelyimagined that these simple provisions would have led to so much of acrimony anddebate.
Historical background:
 The history of judicial administration in India can start with the High Courts Act,1860 whereby High Courts were set up in each province and a further appeal from thesecourts was to the Privy Council in England. Section 200 of the Government of IndiaAct, 1935 created the Federal Court at New Delhi. The Federal Court had jurisdiction only in constitutional matters. A further appeal would lie to the PrivyCouncil.After India attained independence, the jurisdiction of the Privy Council wasabolished by the Abolition of the Privy Council Jurisdiction Act, 1949. Allappeals pending before the Privy Council before 10
th
October 1949 weretransferred to the Federal Court. On Republic day, 26
th
January 1950, the SupremeCourt of India was formed and is now the highest court of appeal in India. Its jurisdiction today is wider than any known Federal Court or Supreme Court. Atpresent, it has appellate jurisdiction in civil and criminal matters. An appeal canalso be filed directly to the Supreme Court against
any
 
order 
passed by
anyauthority
under Article 136 although the Supreme Court usually frowns uponpersons bypassing High Court. The only limitation to Article 136 is that itcannot directly deal with an appeal against an order of a Court or Tribunalconstituted under any law related to the armed forces.
 
The interested reader will find a fascinating account of the Constituent AssemblyDebates dealing with the formation of Supreme Court and its jurisdiction in GranvilleAustin’s “
 Indian Constitution - Cornerstone of a Nation”.
 
Appointment of Supreme Court and High Court Judges - Constitutionalprovisions:
 Article 124(2) deals with appointments of Supreme Court judges and reads asfollows:-
“Every Judge of the Supreme Court shall be appointed by the President bywarrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President maydeem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice,the Chief Justice of India shall always be consulted: Provided further that -(a)a Judge may, by writing under his hand addressed to the President, resignhis office;(b)a Judge may be removed from his office in the manner provided in clause(4).
Article 124(3) prescribes the qualification of a person who can be appointed as aJudge of the and reads as follows:-
“ A person shall not be qualified for appointment as a Judge of the SupremeCourt unless he is a citizen of India and (a)has been for at least five years a Judge of a High Court or of two or moresuch Court in succession; or (b)has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or (c)is, in the opinion of the President, a distinguished jurist 
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The appointment has to be made by the President who issues a warrant of appointment. In India, the President has to act according to the aid and advice of theCouncil of Ministers. Therefore, the appointment by the President is not anindependent decision left entirely to the discretion of the President.Article 217 deals with the appointment of High Court Judges and reads asfollows:-
“(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, theGovernor or the State, and, in the case of appointment of a Judge other than theChief Justice, the Chief Justice of the High Court, and [shall h old office, in thecase of an additional or acting Judge, as provided in Article 224, and in anyother case, until he attains the age of (sixty two years)]: Provided that --(a)a Judge may, by writing under his hand addressed to the President, resignhis office;(b)a Judge may be removed from his office by the President in the manner  provided in clause (4) of Article 124 for the removal of a Judge of theSupreme Court;(c)the office of a Judge shall be vacated by his being appointed by the President of India to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of  India.
The qualification of a High Court Judge is set out in Article 217(2) which reads asunder:-
 A person shall not be qualified for appointment as a Judge of a High Court unlesshe is a citizen of India and --(a)has for at least ten years held a judicial office in the territory of India; or (b)has for at least ten years been an advocate of a High Court or of two omore such Courts in succession;
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